12 Dec Eunice Nyarkoa Antwi v. Dr John Antwi Suit No. BDMC 519/2014, Delivered on 29th April 2016 (High Court)
“It is clear from the evidence that since October 2009 when the Petitioner had knowledge of the extra marital relationship between the Respondent and his paramour and the fact that they had at least one child at the time, she continued to live together with the Respondent as man and wife until the 4th day of February, 2014. This works out to about 4 years and 4 months from the date of the discovery of the affair to the date she left the matrimonial home.
Consequently, on the evidence, the Petitioner by her own showing cannot be said to have found it intolerable to live with the Respondent when she found out about the Respondent’s adultery.”
The Petitioner and the Respondent got married under customary law in October 2001 and subsequently converted their marriage to a monogamous one under the Marriage Ordinance (Cap 127) in December 2002. Together, they had three children.
The Petitioner alleged that the marriage had broken down beyond reconciliation on the basis of adultery and irreconcilable differences. According to the Petitioner, the Respondent had committed adultery with another woman out of which, two children had been born. The Petitioner further alleged that the Respondent abandoned the matrimonial home to live with his concubine until she died.
The Petitioner sought among other reliefs, a dissolution of the marriage, custody of the three children, maintenance for the children and financial settlement for herself.
The Court stated that Section 2 (1) of the Matrimonial Causes, 1971 (Act 367) (“Act 367”) spells out the facts the Court must consider in determining that a marriage had broken down beyond reconciliation, and as such the Petitioner had to prove to the satisfaction of the Court that one of these facts existed. These facts include adultery or such unreasonable behaviour that the Petitioner cannot reasonably be expected to live with the Respondent.
The Petitioner testified that after the first five years of marriage, the Respondent entered into an adulterous relationship with another lady who died before she commenced the action. She stated that when she became aware of the said relationship, the Respondent already had a child with the lady. However, instead of the Respondent showing some remorse, he stayed away from the matrimonial home several times. She further added that the Respondent subsequently had a second child with the same woman when she, the Petitioner, had already given birth to their third child.
The Respondent admitted to having another relationship during the pendency of the marriage, out of which he had two children.
By necessary inference, the court found that the Respondent committed adultery. However, Act 367 requires that apart from proving the existence of the adultery, the Petitioner must show that as a result of the adultery, “the Petitioner finds it intolerable to live with the Respondent”. Act 367 also states that if the parties live together as husband and wife for more than six months after the Petitioner has discovered the adultery, the Petitioner cannot rely on that incidence of adultery in the divorce petition.
The Court took the view that the parties continued to live as man and wife even after the Petitioner discovered that the Respondent committed adultery and had fathered a child with another woman during the subsistence of their marriage. The Petitioner also continued to live with the Respondent for 4 years and 4 months after she found out about the affair.
The Court thus held that the Petitioner had shown by her conduct that she did not find it intolerable to live with the Respondent after she found out about the Respondent’s adultery and as such, did not discharge the burden placed on her to establish that the marriage had broken down beyond reconciliation based on adultery.
The Petitioner also alleged that her family had purported to dissolve the marriage customarily by presenting drinks to the Respondent’s family.
The Court reiterated the position that upon the conversion of a customary marriage to an Ordinance Marriage, the customary marriage ceased to exist. Thus, despite the purported customary dissolution, the marriage between the parties still subsisted, which necessitated the institution of divorce proceedings.
The Court however found that the marriage had broken down due to irreconcilable differences. The judge accordingly granted the divorce on the basis of irreconcilable differences.
Insight: To succeed in a divorce action based on adultery, the Petitioner must not only prove that the Respondent committed adultery, but they must also establish that they found it intolerable to live with the Respondent based on the adultery committed.
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AUTHOR: Tracy Akua Ansaah Ofosu (Trainee Legal Associate)